- A surviving spouse may apply for a division of family property, and that application must be started no more than six months after the grant of probate or administration.
- The claim sits alongside what a will or the intestacy rules give you, so you may have more than one route to look at.
- A spouse who signed a valid waiver cannot apply, so find out early whether you signed one.
When your spouse dies, you may be told what the will says or what the law gives you on an intestacy. There is also a separate question: whether you should ask for a division of family property. Many people do not learn about it until the time to act is running short.
This article explains, in general terms, how that claim fits with a will or intestacy, who it can affect, and the deadline to watch. Your facts matter a great deal here, so treat this as a map and not a verdict.
This article covers the law of Saskatchewan.
What the family property claim is
The Family Property Act lets a surviving spouse apply for a division of family property after a death. The estate's executor or administrator knows this can happen, which is one reason distribution can be delayed after Letters are obtained.
It is different from being a beneficiary under a will. A beneficiary receives what the will gives. A family property application is a request to the court to look at how the family property should be divided. How the court divides it depends on the facts, and a lawyer can explain how that might apply to you.
The deadline you need to know
Under section 30(2) of The Family Property Act, an application by a surviving spouse for a family property order may not be commenced more than six months after the grant of probate or administration.
Because the clock runs from the grant, not from the date of death, it helps to learn when the grant was issued. Ask the executor or administrator, or the lawyer handling the estate. Because missing the deadline can end the claim, confirm the exact timing with a lawyer soon, and do not wait for the estate to be finished.
Executors are cautious about this period. Distribution may be delayed six months after Letters are obtained where a spouse may apply for division of family property. Final distribution also cannot occur until the CRA clearance certificate is received.
One exception matters: spouses who signed a valid waiver cannot apply. If you remember signing any agreement about property during the marriage, tell your lawyer.
How it fits with a will or intestacy
Think of your possible routes side by side. They are separate, and which ones help you depends on whether there is a will and what it says.
| Route | What to know |
|---|---|
| Family property application | Must be started within six months after the grant of probate or administration; not available if you signed a valid waiver |
| Share under a will | You receive what the will gives you; if it makes inadequate provision, a dependant may claim under The Dependants' Relief Act, 1996 |
| Share on intestacy (no will) | Set by the intestacy statute that applies to the date of death |
If there is a will, it is the main guide to what you receive. A surviving spouse may still apply for a family property order, but not more than six months after the grant of probate or administration, and not if they signed a valid waiver. A dependant may also claim where the will makes inadequate provision, and dependants include a legal, common-law or same-sex spouse.
If there is no will
The intestacy law depends on the date of death. The Intestate Succession Act, 1996 applies to deaths before October 1, 2019, and The Intestate Succession Act, 2019 applies to deaths on or after October 1, 2019.
- The spouse inherits the entire estate if all of the intestate's children are also children of the spouse.
- If there are children from another relationship, the spouse first takes a $200,000 preferential share. With one child the remainder is split equally between spouse and child. With more than one child the spouse takes one-third and the children share two-thirds equally.
- A spouse who had lived separate and apart from the intestate for two years takes no share on intestacy.
The $200,000 figure applies to deaths on or after October 1, 2019, and earlier deaths use the earlier Act. A spouse also has first priority to apply for Letters of Administration where there is no will.
What to do next
Act early, because the family property deadline is short and it runs from the grant, not from the death.
- Find out whether there is a will and whether a grant has been issued, and when.
- Write down the date of the grant as soon as you learn it.
- Gather any marriage agreements, waivers or domestic contracts you may have signed.
- List the property held by you, by your spouse and by both of you, and note when it was acquired.
- Ask the executor or administrator how and when distribution is planned.
- Speak with a Saskatchewan lawyer about whether to apply, and about any dependants' relief claim, before the deadline passes.
Frequently asked questions
How long do I have to apply for a family property division after my spouse dies?
An application by a surviving spouse may not be commenced more than six months after the grant of probate or administration. The exact timing is worth confirming with a lawyer as soon as you can.
Can I still apply if I signed a waiver?
Spouses who signed a valid waiver cannot apply. Whether a particular document is a valid waiver is a question a lawyer can help answer.
Does the executor have to wait before paying out the estate?
Distribution may be delayed six months after Letters are obtained where a spouse may apply for division of family property. Final distribution also cannot occur until the CRA clearance certificate is received.
Is a family property claim the same as inheriting under the will?
No. A will gives you what it says, while a family property application asks the court to divide family property. If the will makes inadequate provision, a dependant including a spouse may claim under The Dependants' Relief Act, 1996.
Sources
- Court of King's Bench – Probating an Estate — sasklawcourts.ca
- Government of Saskatchewan – Beneficiaries — saskatchewan.ca
- Government of Saskatchewan – When the deceased does not have a last will and testament — saskatchewan.ca
- The Family Property Act, SS 1997 c F-6.3 (as summarized in search; verify s. 30(2)) — publications.saskatchewan.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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